A Billings Police Officer observed Giacomini driving the wrong-way on a one-way street and initiated a traffic stop. The Officer testified that he noticed Giacomini had watery, blood-shot eyes and smelled of alcohol so he conducted a series of Field Sobriety Tests which indicated impairment. When asked to take a preliminary breath test, Giacomini refused – so he was arrested and taken to Yellowstone County Detention Facility for further testing.

At the detention facility, Giacomini again failed the field sobriety tests and a search showed he had previously refused a breath test in 1990. Based on those factors, the officer applied for and obtained a search warrant for a sample of Giacomini’s blood. Although he was apparently uncooperative, a blood sample was taken and produced a BAC of 0.12. Giacomini was charged with DUI under Mont. Code Ann. § 61-8-401(1)(a) in Municipal Court.

Giacomini filed a motion to suppress the results of the blood test arguing that the draw violated the Montana Constitution and was not supported by probable cause. The Municipal Court denied the motion on the basis that the officer did not violate Giacomini’s constitutional right of privacy and acted pursuant to a valid search warrant. Approximately a month later, Giacomini filed a motion entitled “Request for Hearing” and asked the Municipal Court to reconsider the suppression issue because the video of the blood draw showed that Mr. Giacomini was “continually stuck” with needles. That motion was denied as untimely. Giacomini pled nolo contendere, reserving the suppression issues for appeal. The District Court affirmed the Municipal Court’s rulings.

On Appeal to the Montana Supreme Court, Giacomini challenged the legality of the blood draw and the Municipal Court’s denial of his motion to reconsider as untimely. The Supreme Court found that the warrant was supported by probable cause and did not violate his constitutional right to privacy. It also found that the Municipal Court did not err by denying his motion as untimely.

In challenging the warrant, Giacomini argued that his prior refusal of a breath test was insufficient to establish probable cause to support a warrant to draw his blood. The Montana Supreme Court disagreed, finding that the warrant was supported by a number of different facts: 1) he had driven the wrong way down the road; 2) he had watery and bloodshot eyes; 3) he smelled of alcohol; 4) he swayed and staggered; and 5) he performed poorly on the field sobriety tests.

Giacomini also cited to Missouri v. McNeely, a U.S. Supreme Court decision which held that the natural dissipation of alcohol from the bloodstream does not constitute a per-se exigent circumstance justifying a warrantless blood draw in a DUI investigation. Giacomini applied this to his situation, arguing that if dissipation is insufficient for exigent circumstances, it is insufficient for probable cause. The Montana Supreme Court ruled that the probable cause determination was not based solely on alcohol dissipation, included considerable other evidence, and the case did not involve a warrantless blood draw based on exigent circumstances so McNeely did not apply.

The Supreme Court declined to address Giacomini’s constitutional challenge to the blood draw.

Finally, the Supreme Court upheld the Municipal Court’s decision that the Request for hearing was untimely. The Court believed that it was essentially a second motion to suppress, and found that it should have been raised before the omnibus hearing. Because it was filed approximately three months after that date, it was untimely.

In August of 2011, David Kime was charged with felony DUI, careless driving, and operating a motor vehicle while a habitual traffic offender. These charges came about following a traffic accident where Kime drove through an intersection and hit another vehicle. In January of 2012, the State filed notice that it intended to seek persistent felony offender status in Kime’s case. The basis for this was Kime’s May 2009 conviction for felony DUI. Kime objected to the persistent felony offender designation, but his objection was denied by the District Court.

Ultimately, Kime pled guilty to the felony DUI charge and the State dismissed the charge of driving while a habitual traffic offender. A bench trial was held on the careless driving charge which resulted in his conviction. Kime was sentenced to ten years at the Montana State Prison with no time suspended as a persistent felony offender for the felony DUI, and to 30 days in jail on the careless driving conviction. He was given credit for 246 days of time served.

On appeal, Kime argued that the District Court erred in sentencing him as a persistent felony offender. His position was that the persistent felony offender statutes conflicted with the sentencing rules provided for felony DUI. And because the persistent felony offender statutes are general, the felony DUI sentencing statute is specific. Therefore, the DUI statute (as the more specific option) should over ride. He acknowledged that this was contrary to the Supreme Court’s precedent in State v. Damon (2005 MT 218). The Court disagreed stating that “[i]n the decisions following Damon, this Court has clearly established that the intent of the persistent felony offender statutes is that they replace the sentences for the underlying felony.” Because the persistent felony offender sentencing provisions replace the underlying felony offense there is no need to resort to the rules of statutory construction, according to the Court. It’s the purpose of the felony offender statutes to conflict with the other sentencing statutes, it’s a feature not an error.

Kime also challenged his sentencing to 30 days in jail for the careless driving, arguing that the District Court exceeded its authority when it imposed that sentence.Under 61-8-711(2) and -716, MCA, the only penalty for careless driving is a fine between $10 and $100. The Supreme Court remanded the case with instructions to the District Court to strike the illegal jail time imposed in the sentence for careless driving.

Finally, Kime raised an argument of ineffective assistance of counsel. Specifically, he said that his counsel’s failure to argue against the sentence imposed for the DUI was per se unreasonable. However, the Supreme Court pointed to numerous statements by Kime where he expressed a willingness to accept anything the District Court decided on, so long as it did not include any suspended time. The Court believed that Kime’s attorney followed his instructions, and did not provide deficient representation.

Often, DUI arrests are the result of citizen informants making calls to 911 which the officers rely on and make a traffic stop. Under the laws of Montana, an officer does not need to see illegal activity himself. The officer can rely on an informant’s statement that has sufficient indicia of reliability. The Montana Supreme Court has provided three factors to consider when deciding if a statement (and informant) is sufficiently reliable: 1) whether the informant identified himself; 2) whether the report makes it clear that it is based on the informant’s own observations; and 3) whether the officer corroborates the statement. As to #3, the officer can corroborate the statement without witnessing any illegal activity. The statement is considered corroborated if the officer finds the suspect or suspect’s vehicle substantially as described by the informant.

In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

Moreover, “[t]o justify an investigative stop, an officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” State v. Martinez, 2003 MT 65, ¶ 21, 314 Mont. 434, ¶ 21, 67 P.3d 207, ¶ 21 (citations omitted).

An officer need not personally observe illegal activity in order to have particularized suspicion justifying an investigative stop. State v. Fellers, 2004 MT 321, ¶ 21, 324 Mont. 62, 101 P.3d 764. Particularized suspicion may be based on information obtained via a citizen informant, as long as the informant’s information contains sufficient indicia of reliability. State v. Pratt, 286 Mont. 156, 164-68, 951 P.2d 37, 42-44 (1997). For an officer to effect an investigative stop based on a citizen informant’s report: (1) the citizen informant must identify himself or herself to law enforcement, (2) the report must be based upon the informant’s personal observations, and (3) the officer must corroborate the informant’s information by observing illegal activity or finding the person, the vehicle, and the vehicle’s location substantially as described by the informant. State v. Wagner, 2003 MT 120, ¶ 13, 315 Mont. 498, ¶ 13, 68 P.3d 840, ¶ 13 (citation omitted).

Even where an informant has identified himself and given a report based on personal observations, the officer must “corroborate the informant’s information by observing illegal activity or finding the person, the vehicle, and the vehicle’s location substantially as described by the informant.” Wagner, ¶ 13.

Conviction for DUI in Montana has a number of ancillary consequences that most people aren’t aware of. One of the most significant is the automatic suspension of a driver’s license. Under section 61-5-208(2)(b)(i) of the Montana Code Annotated, a person convicted of a first offense of DUI or DUI per se shall have his or her license suspended for a period of six months. A person convicted for the second time within five years will have his or her license suspended for one year, and can not be granted a probationary license until 45 days of the 1 year suspension have passed. Also, the judge must recommend that the offender be issued a probationary license (however, it will be necessary that an ignition interlock device be installed in their vehicle).

A third or subsequent conviction of DUI within a five year period means a one year suspension of driver’s license, and a probationary license may only be issued after the offender has completed 90 days of the year long suspension. This also includes a requirement for the ignition interlock device.
Reinstatement of the license includes paying a $200 fine to the Motor Vehicle Division of the Montana Department of Justice. This applies whether or not a probationary license was issued. Many people convicted of a DUI forget this step, and end up accumulating Driving While Suspended charges later on, after assuming that their license was reinstated at the end of the suspension. If you’ve been convicted of DUI and aren’t sure whether you paid the reinstatement fee, a call to the Motor Vehicle Division might be a good idea.

A probationary license can fall under four different categories: Occupational Driving Only; Home to School and Return; Essential Driving only; or Daytime Hours Only.

Licenses restricted to “occupational driving only” may only be used by the licensee to travel to and from the regular place of employment, or in search of employment, by the most direct route from the residence in a period of time no greater than is reasonable under existing traffic conditions; and during work hours at the specific direction of the employer for purposes of carrying out assigned job related functions.
Licenses restricted to “home to school and return” may only be used by the licensee to travel between the residence and the school or educational institution in which the licensee is enrolled. Travel is only authorized immediately before and after regular school hours and must be by the most direct route between the residence and the school in a period of time no greater than is reasonable under existing traffic conditions. Driving to or from extracurricular activities is not allowed.

Licenses restricted to “essential driving only” may only be used by the licensee for occupational driving as described above; home to school driving as described above; and travel to and from the regular residence in a period of time no greater than is reasonable under existing traffic conditions for purposes related to maintenance of the household.
Licenses restricted to “daytime hours only” may only be used by the licensee to operate a motor vehicle from one-half hour before sunrise to one-half hour after sunset.

While these four options are described in the Administrative Rules of Montana, the rules also allow the Division to impose additional restrictions when appropriate. However, none of these restrictions can prohibit a driver from travelling to or from required alcohol treatment programs.

If you’ve been charged with a DUI, you are facing license suspension. While Montana is beautiful, it’s also spread out. Getting along with the ability to drive is a real hardship, and something you should consider when charged with an alcohol related driving offense. The best advice I can give you is to talk to an attorney about the possible outcomes, and see what options are available to mitigate these potential problems.

For people accused of DUI, or any crime, in Montana, a large number of constitutional protections apply. These include protections against unlawful search and seizure, the protection against Double Jeopardy, and the right to a jury trial. As I’ve discussed before, the State must prove all the elements of a charge beyond a reasonable doubt. The person (or people) they must prove this to is called the fact finder. For both misdemeanor DUIs and felony DUIs, the defendant has a constitutional right to select a jury trial.

In a jury trial, the fact finder is the jury. Citizens from the county where the trial is taking place will make up the jury. For example, if you are charged with DUI in Flathead County, Montana – the jurors will come from Flathead County. If you are charged with DUI in Lake County, Montana – the jurors will come from Lake County.

The jury should consist of people who know nothing (or as little as possible) about you and the facts of this case. The reason for this is very important. Only admissible evidence can be considered by the jury when they are reaching their verdict. And everything that is printed in the newspaper may not be admissible. Everything that your neighbor might know about the case might not be admissible. If a jury member comes to the trial already knowing things that should not be considered, it is ridiculous to think that they will completely forget that fact for the purposes of the trial. In fact, it is probably ridiculous to think that they won’t tell their fellow jurors what they know. Everyone likes to know a secret.

In a jury trial, the jury considers the admissible evidence and then decides whether the State has proven the elements of the charge beyond a reasonable doubt. If the jury finds that the State failed to prove even one element beyond a reasonable doubt, they should find the defendant not guilty. How this works in practice is a different matter, and one I would be happy to discuss with you. I offer a free consultations to answer exactly these kinds of questions. Call me at (406) 752-6373 to schedule your free meeting.

Most DUI cases in Montana do not go to trial. There are a thousand different reasons for this, and they’re not worth getting in to at this time. However, it is a defendants unequivocal right to have all the elements of any criminal charges against him proven by the State beyond a reasonable doubt.

At trial the State will present its case and the Defendant will present his. Many people think of a defense attorney’s job as putting on the best possible story for his client. But often the most important part of my work is limiting the State’s case as much as possible. So when they try to present evidence of Breath Alcohol Content (B.A.C.) I make sure that the test complied with the many and strict constitutional requirements of the State and Federal Constitutions. If it doesn’t, then the evidence is inadmissible and cannot be shown to a jury or considered by a judge. If the State cannot prove an element of the case, then they cannot meet their burden and the charges must be dismissed.

So while the case your attorney builds is vital – what he manages to keep out of the State’s case may be even more important.

The elements of a DUI in Montana consist of proving that the Defendant:

was driving or in actual physical control of a vehicle;

upon the ways of this state open to the public while under the influence of alcohol; or within this state while under the influence of drugs or a combination of alcohol and drugs;

was under the influence of alcohol, drugs or a combination of alcohol and drugs; and

within city/county to establish venue and jurisdiction

for a DUI Per Se violation, the prosecution must prove that the defendant:

was driving or in actual physical control of a vehicle;

upon the ways of this state open to the public;

while the alcohol concentration in the blood, breath or urine was 0.08 or more; and

within city/county to establish venue and jurisdiction.

If you have questions about what needs to be proved for a DUI or DUI Per Se in Montana, call me today to discuss your case. I offer a free consultation and am always happy to take the time to help people understand their legal situation. Call 406-752-6373 to schedule a free consultation.

Montana law provides for immediate and automatic suspension and revocation of a driver’s license if you refuse to comply with a valid request for a Alcohol Content (AC) Test. This could be either a Portable Breath Test (PBT) at the scene, or a more technical and accurate test at the station, or a blood test later. If you refuse to comply with any of these tests your license will automatically be taken away. If it is your first refusal, you will lose your license for 6 months. A subsequent refusal (within 5 years of the past refusal) results in losing your license for one year. You’ll be given a temporary license for 5 days.

My advice is to use those 5 days to find a good DUI Lawyer. In Montana, the suspension/revocation under the implied consent law can be appealed to District Court with the hope of reinstating your license. This MUST be done within 30 days of losing your license. Do not wait. Go immediately to discuss your options with a lawyer, because it will take some time for your DUI attorney to get things in order before the proper documents can be filed. I offer a free consultation for DUI matters, so there’s really nothing to lose by picking up the phone and scheduling a consultation.

There are four issues on appeal in a case like this: 1) whether the officer had “reasonable grounds” to believe that you were driving under the influence; 2) whether you were under the age of 21 and placed under arrest for DUI; 3) whether the officer had “probable cause” to believe that you were driving under the influence and part of an accident resulting in property damage, personal injury, or death; and 4) whether you actually refused to submit to the test.

One thing to remember is that the officer MUST inform you of the consequences of a refusal to comply with the test. Most Montana police departments that I am aware of now have a standard form that you sign when you refuse to participate in the test. It lays out the consequences of a refusal. ALWAYS read something carefully before signing it. You never want to be in front of a judge claiming you signed something without understanding it or reading it. This applies throughout your life, and especially if you have been stopped for suspicion of DUI (or any crime).

Finally, remember that once you refuse the test – you can not take it back. Under Johnson v. Motor Vehicles Division and Hunter v. State the Montana Supreme Court has clearly said that a subsequent attempt to withdraw a refusal is no fix. Always, always, always think before you act.

If you’ve been charged with DUI and had your license revoked for refusal to give an Alcohol Content Test, call me today to discuss your options. You can reach my office at 406-752-6373 and schedule a free consultation.

Anyone who follows the news in Montana knows that DUI laws are near the top of the legisture’s agenda for this session. The Flathead Beacon details the proposals by Kalispell Representative Steve Lavin to toughen DUI laws in Flathead County and the rest of Montana. One of his proposals would require repeat drunken drivers to submit to breath tests, twice a day, to prevent them from drinking. For those convicted to two or more DUIs in Montana, these tests (ideally 12 hours apart) would be mandatory. Those who fail the test could be subject to arrest and jail. The idea is based on programs which have been instituted in South Dakota and in Lewis and Clark County.

The bill requires that offenders pay for the testing themselves. According to the article, this would come to about $2 per test. But I have to wonder how these figures are calculated. If every resident of Flathead County who has been convicted of two or more DUIs was required to visit the Sheriff’s office twice a day for UI test, I believe the impact would be very significant. The cost of an individual test may be about $2. But how much will it cost the County in terms of man power to supervise and administrate. Will the $2 cover the hiring of additional personnel? I doubt it.

As the article points out, cries to amend Montana DUI laws are a common theme in every legislative session. But the tragedies of the last year may finally result in some major changes.

A deferred prosecution is a type of plea bargain, and basically a contract with the Court where you agree to meet certain conditions in exchange for the Court agreeing to postpone prosecution of your case. If you complete all the requirements, your case will be dismissed and no conviction will be entered against you. Let that sink in for a minute. No conviction. Not for anything. You can see why deferred prosecutions are very appealing to Montana DUI defendants.

In a way, a deferred prosecution is like a bet with the Court. You are betting that you can go the required time without having any more legal troubles. If you win the bet, you get a great result. If you lose the bet, you generally get a worse result. Because not only do you have the original problem bearing down on you again, but you’ve also proven to the prosecutor that you can’t keep your nose clean for a relatively short period of time.

Especially for first time DUI defendants, this case is the only time they will face legal troubles in their lives. For them, a deferred prosecution is an excellent option, and exactly the sort of situation this was designed for. It allows the Court to supervise the person for a period of time and make sure they can stay out of trouble, but (assuming it works) allows the defendant to keep their record clean of a DUI.

Negotiating a deferred sentence in a Montana DUI can be a trick proposition and requires a thorough understanding of the law and procedures surrounding Drunk Driving charges. I offer a free consultation, what have you go to lose?

When a person is pulled over and the officer conducts a DUI investigation, he is looking for one main thing: evidence that you are impaired by alcohol or drugs. But, the officer has a number of disadvantages regarding the accuracy of his investigation.

The first is that he is unaware of what your normal faculties are. If you’ve had a knee injury, for instance, doing a heel-to-toe walking test may be difficult for you. Likewise, when standing on one foot for a long period of time any number of medical reasons may cause you to sway or lose your balance. These do not reflect on your degree of intoxication or impairment.

There are a number of ways that police try to collect proof against a driver suspected of DUI in Montana. One is by asking about alcohol consumption. An officer could ask, for instance, if you have been drinking and if so, how much. Another aspect the officer will evaluate is your performance on field sobriety tests, where you are asked to complete several physical activities (and follow instructions) to see how well you are able to complete the task. The officer will evaluate your performance on these tests, although his or her perception is highly subjective, and may be colored by the fact that he already suspects you are intoxicated.

Perhaps the most important test the officer will ask you to submit to is a breathalyzer. Although there is evidence to suggest that these machines are not nearly as accurate as police claim they are, the results are still admissible in court.

In addition to these tests, the officer is also watching for other signs of intoxication like bloodshot eyes for example. But as anyone with allergies or contacts can tell you, drinking isn’t the only way to get red eyes.

The bottom line is that while an officer is watching for certain things during a DUI investigation, many of these factors can be caused by completely innocent facts that the officer is not aware of. If you have been wrongly accused of driving under the influence of alcohol or drugs in Montana, please call me today at (406) 752-6373 for a free consultation.

Paul Sullivan, Esq.

Paul is a partner at Measure, Sampsel, Sullivan & O'Brien, P.C. in Kalispell, MT. He is an ivy-league educated, DUI Lawyer specializing in defending Montanans accused of Driving Under the Influence of Drugs or Alcohol. He represents clients across Montana in misdemeanor and felony charges, and license hearings.
Call 752-6373 today for a free initial consultation.